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The New York Times
February 7, 2006
Panel Asks New York to Join the Era of No-Fault Divorce
By DANNY HAKIM
ALBANY, Feb. 6 — A commission appointed to look into New York State's matrimonial laws called on Monday for an overhaul of divorce and child custody rules, including the authorization of no-fault divorces, which would put New York in line with all the other states.
By not allowing couples to end their marriages by mutual consent, New York has kept some of the strictest barriers to divorce in the nation. Currently, one party in the divorce must allege cruel and inhuman treatment, adultery, or abandonment — literal or sexual — for a year. That rule has often resulted in costly legal proceedings and bitter custody fights in cases where both sides want a divorce.
The Matrimonial Commission, which was appointed by the state's chief judge in 2004 and has taken testimony around the state, called for a range of changes to bring New York's matrimonial laws more in line with practices around the United States. In addition to allowing no-fault divorces, the panel called for an emphasis on mediation and procedures to move cases more swiftly through the system.
The commission's report was seized on by the state's chief judge, Judith S. Kaye, who said that the changes "would be front and center" on her agenda in the coming months. And it comes as several prominent groups, including the bar associations of New York City and State, have urged that New York allow for some kind of one-step, no-fault divorce.
"Divorce takes much too long and costs much too much— too much money, too much agony, too hard on the children," Judge Kaye said on Monday in her annual address on the state of the judiciary. She said afterward that no-fault divorces would mean that spouses "don't have to invent charges against each other."
Some Roman Catholic and women's groups have historically opposed no-fault divorces, and in recent years conservative groups have been pushing for more restrictive barriers to divorce. But in New York there has been a shift in sentiment in favor of no-fault divorce, with the Women's Bar Association reversing its opposition in 2004.
But for no-fault divorce to come into being, the Legislature would have to agree, and lawmakers have had bruising fights over the issue. While the report, from a commission led by Justice Sondra Miller of the State Supreme Court's Appellate Division, gives the proposals a new immediacy, the issue languished in the Legislature after Judge Kaye called for no-fault divorce a year ago.
Lawmakers said on Monday that they had yet to review the report. Helene E. Weinstein, a Democratic assemblywoman from Brooklyn who is chairwoman of the Assembly's Judiciary Committee, said she had supported no-fault divorces in the past, with some reservation, and was working on "a potential draft proposal."
Leaders in the Republican-led Senate suggested that the focus might be on more incremental changes.
"There's been no real talk about having a true no-fault divorce," said John DeFrancisco, a Syracuse Republican who is chairman of the State Senate's Judiciary Committee. He said that he has been focused, as a first step, on cutting down the amount of time it takes to get divorced once a separation agreement is reached. Currently, couples do not need grounds to divorce when they reach a legal agreement to separate, with consensus on all financial, property and child custody issues — a method of ending a marriage that can avert the bitter court fights that consume costly lawyers' fees. But then they must live apart for a year.
In her speech, Judge Kaye also called for broad changes in the way the state elects its judges, to give the public more control of the process.
Recommendations also have been made to change even the language used to describe custody arrangements — substituting terms like "parenting time" for "visitation," which Judge Kaye said "seems more appropriate for a prison visit."
Among the commission's recommendations were the streamlining of court cases, with strict time limits for less contentious divorces. Other proposals include amending procedures used in choosing and training judges, and trying to keep judges attached to cases even after they rotated out of the Family Court system. The report also suggested changes in the role of court-appointed attorneys who represent children and in the vetting of expert witnesses.
Another proposal would provide funds for legal representation for those who could not afford it. In many cases, low-income spouses either cannot afford to divorce or are obliged to represent themselves.
Alton L. Abramowitz, a divorce lawyer who presides over the New York City Bar Association's matrimonial law committee, said, "To my mind, after no-fault, the most important recommendation is that people be afforded representation. The vast majority of divorces in New York State involve families earning under $60,000 a year, and they can't afford an attorney."
No-fault divorces, he added, "would be a huge monetary savings for the court," because they would reduce the need for resources like courtrooms, clerks, stenographers and juries.
A spokesman for Gov. George E. Pataki, Kevin Quinn, said that the governor had yet to review the commission's proposal.
Judge Kaye did not immediately endorse all of the report's many findings, but said that it "unquestionably will be front and center for us in the coming months."